HomeMy WebLinkAbout2916 Adult Entertainment Establishments
ORDINANCE 2916
AN ORDINANCE OF THE CITY OF PORT TOWNSEND
AMENDING TITLE 17, ZONING OF THE PORT TOWNSEND
MUNICIPAL CODE, DEFINING AND REGULATING
ADULT ENTERTAINMENT ESTABLISHMENTS
WHEREAS, the City Council determined to review appropriate licensing and business
regulations for adult businesses (hereinafter referred to as "adult entertainment facilities"), and
adopted Ordinance 2858 on May 3, 2004 prohibiting applications for licenses for adult
entertainment facilities on an interim basis to provide the City needed time to consider properly and
carefully the potential location and regulation of adult businesses, including review and
recommendation by the Planning Commission; and
WHEREAS, the City Council adopted Ordinance 2881 (passed November 1, 2004), and
Ordinance 2901 (passed June 20, 2005) extending the interim prohibition pending completion of the
review by the Planning Commission. The Council takes notice of the fact the Planning Commission
has been devoting substantial amounts of its time to its review of updates to the City's Shoreline
Master Program, which the City was under a deadline to adopt, and had little time to meet and
review the zoning regulations of adult entertainment facilities until recently; and
WHEREAS, the Planning Commission has conducted extensive public review including
one public workshop (October 27, 2005) and a public hearing commenced on April 21, 2005, and
continued for further testimony and comment on June 9, 2005, and November 10, 2005; and
WHEREAS, the Planning Commission reviewed materials and public comment, including
materials submitted and/or made available for review by City staff which are set forth in the
Findings and Conclusions of a draft ordinance providing licensing regulations for adult (which
Findings and Conclusions are set forth in this Ordinance; and
WHEREAS, following careful review, the Planning Commission has unanimously
concluded (on a vote of 8-0) that the downtown C-ill Historic Commercial zoning district is the
most appropriate location in the city to permit adult entertainment facilities as allowed uses. The
downtown was found to be the most appropriate location for these types of facilities due to
. the intense commercial nature of this area
. a mix of land uses and properties, including a mix of land values, which values may be
higher than elsewhere in the City but which allows applicants the opportunity to locate along
with other businesses in the area,
. high visibility allowing for "eyes on the street" provided by downtown residents and
businesses to help maintain vigilance and minimize criminal activity,
. close proximity to police response
. design review guidelines providing compatibility of new adult entertainment development
or re-development consistent with historic preservation and helping to ensure the historic
character of the City
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. the fact that the downtown C-III Historic Commercial zoning district was the location in
town best able to withstand the potential negative attributes of such businesses, should any
decide to locate in Port Townsend; and
WHEREAS, the Planning Commission recommends that adult businesses be prohibited in
all other zoning districts in the City due to their potential negative attributes; and
WHEREAS, the Planning Commission recommends that any new adult businesses located
in the downtown C-III Historic Commercial zoning district should be located a minimum of 150
feet from other adult businesses as well as from public and private schools; and
WHEREAS, it is necessary to exempt adult entertainment facilities from the provisions of
PTMC Chapter 17.50 Formula Retail Establishments to avoid prohibiting formula adult
entertainment establishments from any potential location within the City; and
WHEREAS, the Planning Commission strongly recommends that these amendments to the
zoning code be accompanied by simultaneous adoption of strong business regulations for adult
entertainment facilities and personnel;
WHEREAS, the City Council held a public hearing on November 21, 2005, and
WHEREAS, the City Council, following careful review of this matter, concurs with the
recommendations and findings of the Planning Commission, and finds that regulation of location of
adult entertainment facilities, and regulation of adult entertainment facilities through business
licensing (which business licensing is the subject of separate City Council action), is justified and
necessary for the reasons set forth in this Ordinance, including the Findings and Conclusions in
Section l.
NOW, THEREFORE, the City Council ofthe City of Port Townsend ordains as
follows:
Section I. Findings and Conclusions. Based upon a wide range of evidence presented to the
City Council, including but not limited to studies, publications, articles, case law, the City
Council makes the following findings:
A. The City Council may rely on the experiences and studies of other cities and
counties in assessing the need for licensing and regulating the operation of adult entertainment
facilities.
B. The City Council takes notice of the studies and experiences of other cities and
counties in combating the specific, adverse impacts of adult entertainment facilities.
C. The City Council finds that the protection and preservation of public health,
safety, and welfare requires establishment of this Ordinance.
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D. Regulation of adult entertainment facilities should be developed to prevent
deterioration and degradation of the vitality of the community before the problem exists, rather
than in response to an existing problem.
E. There are important and substantial government interests providing a
constitutional basis for the reasonable regulation of the time, place, and manner under which
adult entertainment facilities can operate.
F. Certain conduct occurring on the premises of adult entertainment facilities creates
secondary impacts that are detrimental to the public health, safety, and general welfare of the
citizens of Port Townsend, and therefore such conduct must be regulated as provided herein.
G. It is not the intent of this ordinance to unconstitutionally suppress or censor any
expressive activities protected by the First Amendment of the United States Constitution or
Article I, Section 5 of the Washington State Constitution, but rather to enact content-neutral
time, place, and manner regulations designed to mitigate the deleterious secondary effects
associated with and caused by adult entertainment facilities.
H. The Port Townsend City Council makes these findings of fact based in part on:
The evidence of conduct occurring in and around adult entertainment businesses as reported in
O'Day v. King County, 109 Wn.2d 796 (1988). The City Council also makes these findings
having taken legislative notice of the evidence of conduct occurring in and around adult
entertainment businesses located in other jurisdictions, which the Council hereby deems to be
relevant, as reported in judicial opinions including but not limited to Renton v. Playtime
Theatres, 475 U.S. 41 (1986), City of Erie v. Pap's A.M., 529 U.S. 277 (2000), Kev, Inc. v.
Kitsap County, 793 F.2d 1053 (9th Cir. 1986), Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103
(1997), DCR, Inc. v. Pierce County, 92 Wn.App. 660 (1998) and Colacurcio v. City of Kent, 163
F.3d 545 (9th Cir. 1998); World Wide Video v. Spokane, 227 F.Supp. 2nd 1143 (Eastern District,
Washington, 2002), affirmed 368 F.3'd 1186 (9th Cir., 2004); and as reported in the studies and
findings of other city and county legislative bodies that have also adopted ordinances regulating
adult entertainment businesses, including but not limited to the counties of Kitsap, Pierce,
Snohomish and Spokane and the cities of Bellevue, Bothell, Everett, Federal Way, Kent, Lake
Forest Park, Redmond, Renton, Seattle, Shoreline and Tukwila. In particular, the Council takes
judicial notice of the legislative record of the City of Federal Way contained on the
www.mrsc.org web site, and the Staff Report dated July 13, 1998 (and attachments) to the
Vancouver City Council regarding adult entertainment ordinance.
Section 2. New Sections. The following definitions are hereby added to Port Townsend
Municipal Code Chapter 17.08 Zoning Code Definitions. For the purposes of this ordinance,
"adult entertainment facility" is defined as set forth in paragraph E below, and includes any "other
adult entertainment facility" defined in paragraph I below. Other definitions are also set forth
below.
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A. "Adult arcade" means a commercial establishment containing individual viewing
areas or booths where, for any form of consideration, including a membership fee, one (I) or
more still or motion picture projectors, slide projectors, digital images or other similar image
producing machines are used to show films, motion pictures, video cassettes, slides, or other
visual representations that are distinguished or characterized by a predominant emphasis on
matters depicting, describing, or simulating any specified sexual activities or any specified
anatomical areas.
B. "Adult business license" means a license issued by the City Clerk under this
chapter to the owner or operator of an adult entertainment facility.
C. "Adult cabaret" means a nightclub, bar, restaurant, tavern, or other similar
commercial establishment, whether or not alcoholic beverages are served, that regularly features:
I. Persons who appear nude or semi-nude; or
2. Live performances which are distinguished or characterized by a
predominant emphasis on matters depicting, describing, or simulating any specified
anatomical areas or any specified sexual activities.
D. "Adult entertainment" means:
I. Any exhibition, performance or dance conducted in an adult entertainment
facility where such exhibition, performance or dance is distinguished or characterized by
a predominant emphasis on matters depicting, describing, or simulating any specified
sexual activities or any specified anatomical areas; or
2. Any exhibition, performance or dance intended to sexually stimulate any
patron and conducted in an adult entertainment facility where such exhibition,
performance or dance is performed for, arranged with, or engaged in with fewer than all
patrons in the adult entertainment facility at that time, with separate consideration paid,
either directly or indirectly, for such performance, exhibition or dance. For purposes of
example and not limitation, such exhibitions, performances or dances are commonly
referred to as table dancing, couch dancing, taxi dancing, lap dancing, private dancing or
straddle dancing.
E. "Adult entertainment facility" means a commercial establishment defined herein
as an adult arcade, adult cabaret, adult motion picture theater, adult retail store, or other
establishment where adult entertainment is offered, including but not limited to private
membership clubs.
F. "Adult motion picture theater" means an enclosed commercial establishment
where, for any form of consideration, motion pictures, films, video cassettes, slides, or other
similar visual media are regularly shown that are distinguished or characterized by a
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predominant emphasis on matters depicting, describing, or simulating any specified sexual
activities or any specified anatomical areas.
G. "Adult Retail Store" means an enclosed building, or any portion thereof which,
for money or any other form of consideration, devotes a significant or substantial portion of
stock in trade to the sale, exchange, rental, loan, trade, transfer or viewing of "sexually oriented
materials." For purposes of this definition, a retail store devotes a significant or substantial
portion of its stock in trade to sexually oriented materials if the sale, exchange, rental, loan,
trade, transfer or viewing of such "sexually oriented materials is clearly material to the economic
viability of the business. It is rebuttably presumed that such sexually oriented materials is clearly
material to the viability of the business if sexually oriented materials accounts for:
1. Twenty-five percent or more of the retail dollar value of gross sales over any
quarterly period;
2. Twenty-five percent or more of the floor area of the store open to the public;
3. Twenty-five percent or more of the retail dollar value of all merchandise
displayed in the store;
4. Twenty-five percent or more of the store's inventory (whether measured by retail
dollar value or number of items); or
5. Twenty-five percent or more of the store's stock in trade.
In no event shall a retailer whose transactions only incidentally or marginally relate sexually
oriented materials be considered an adult retail store.
H. "Nude" means the appearance of less than complete and opaque covering of the
human anus, human male genitals, human female genitals, or the areola or nipple of the human
female breast. The opaque covering shall be made of material or fabric, but shall not include any
liquid substance, including mud, water, lotion, whipping cream, or other similar substances that
are easily broken down or removed and do not offer the covering intended for an opaque
covering.
I. "Other adult entertainment facility" means any commercial establishment not
defined herein where adult entertainment or sexually oriented materials is regularly conducted,
displayed, or available in any form, for any type of consideration. Provided however, that a
public library, and a school, university, or similar educational or scientific facility shall not be
considered an adult entertainment facility. In addition, a commercial establishment that offers
access to telecommunications networks as its principal business purpose shall not be considered
an adult entertainment facility unless the access it provides is for the primary purpose of
displaying or presenting visual images that are distinguished or characterized by a predominant
emphasis on matters depicting, describing, or simulating any specified sexual activities or any
specified anatomical areas.
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Ordinance 2916
J. "Semi-nude" means a state of dress in which the clothing completely and
opaquely covers no more than the genitals, pubic region, and areola and nipple of the female
breast, as well as portions ofthe body covered by supporting straps or devices.
K. "Sexually oriented materials" means any books, magazines, periodicals or other
printed materials, or any photographs, films, motion pictures, video cassettes, slides, digital
images or other visual representations, that are distinguished or characterized by a predominant
emphasis on matters depicting, describing, or simulating any specified sexual activities or any
specified anatomical areas. The term "sexually oriented materials" includes any instruments,
devices, or paraphernalia designed for use in connection with any specified sexual activities.
L. "Specified anatomical areas" means and includes any of the following:
I. Less than completely and opaquely covered human genitals, pubic region,
anus, buttocks, or female breast below the top of the areola; or
2. The human male genitals in a discernibly turgid state, even if completely
and opaquely covered.
M. "Specified sexual activities" means and includes any of the following:
1. The caressing, fondling or other erotic touching of human genitals, pubic
region, buttocks, anus, or female breasts; or
2. Sex acts, normal or perverted, actual or simulated, including but not
limited to intercourse, oral copulation, or sodomy; or
3. Masturbation, actual or simulated; or
4. Excretory functions as part of, or in connection with, any of the sexual
activities specified in this definition.
5. Violent or destructive sexual behavior, including but not limited to actual
or siruulated human or animal mutilation, bestiality, dismemberment, rape or torture.
Section 3. Amendment. Port Townsend Municipal Code 17.20.020 is hereby amended
as follows (underline is new):
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Ordinance 29/6
Table 17.20.020
Commercial Zoning Districts - Permitted, Conditional and Prohibited Uses
Key to table:
P = Permitted outright; M = Permitted if marine related; C = Subject to a couditional use permit; X = Probibited;
NIA = Not annlicable
DISTRICT C-I C-II C- II(H) C-III APPLICABLE REGULATIONS/NOTES
COMMERCIAL USES
Adult X X X .r Adult Entertainment Facilities may be located only in the
Entertainment downtown C-III zoning district. south of Jefferson Street.
Facilities Within the downtown C-III zoning district. Adult Entertainment
Facilities may not be located within 150 feet from any existing
school as defmed by 17.08.060. Defmitions. day care center.
Pone Marine Park. skateboard park. or Memorial Field. or
another existing Adult Entertainment Facility (measured from
the closest noints ofthe uses in auestion)
Section 4. Amendment. Port Townsend Municipal Code Section 17.1 6.020 Residential
Use Zoning Districts to prohibit Adult Entertainment Facilities in the residential districts is
hereby amended as follows (underline is new):
Residential Zonin
x
x
x
x
Section 5. Amendment. Port Townsend Municipal Code Section 17.18.020 Mixed Use
Zoning Districts to prohibit Adult Entertainment Facilities in these zoning districts is hereby
amended as follows (underline is new):
Table 17.18.020
Mixed Use Zonin Districts - Permitted, Conditional and Prohibited Uses
Key to table:
P = Permitted outri ht; C = Sub'ect to a conditional use ermit; X = Prohibited; N/A = Not a licable
DISTRICT C-I C-II MU APPLICABLE REGULATIONS/NOTES
COMMERCIAL USES
Adult Entertainment X X
Facilities
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Ordinance 29 J 6
Section 6. Amendment. Port Townsend Municipal Code Section 17.22.020 Marine-
Related and Manufacturing Zoning Districts to prohibit Adult Entertainment Facilities in these
zoning districts is hereby amended as follows (underline is new):
Table 17.22.020
Marine-Related and Manufacturing Districts - Permitted, Conditional and Prohibited Uses
DISTRICT
COMMERCIAL USES
APPLICABLE REGULA TIONS/NOTES
Adult
Entertainment
Facilities
x
x
x
x
x
Section 7. Amendment. Port Townsend Municipal Code Section 17.24.020 Public,
Park and Open Space Zoning Districts to prohibit Adult Entertainment Facilities in these zoning
districts is hereby amended as follows (underline is new):
x
x
x
Section 8. Amendment. Port Townsend Municipal Code Chapter 17.50, Formula Retail
and Restaurant Establishments, is hereby amended to read as follows (underline is new):
17.50.030 Formula Retail - Defined - Includes Formula Restaurants - List of
Exempt Businesses.
A. "Formula Retail" means a type of retail sales or rental activity and retail sales or
rental establishment, including restaurants, hotels and motels, which, along with fourteen or
more other establishments, maintains two or more of the following features:
I. Standardized array of merchandise or standardized menu.
2. Standardized fac;ade.
3. Standardized decor and color scheme.
4. Uniform apparel.
5. Standardized signage.
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6. Trademark or service mark.
B. For the purposes of this section the following definitions apply:
I. "Standardized array of merchandise" shall be defined as 50% or more of in-
stock merchandise from a single distributor bearing uniform markings.
2. "Trademark" shall be defined as a word, phrase, symbol or design, or a
combination or words, phrases, symbols or designs that identifies and distinguishes the source of
the goods from one party from those of others.
3. "Servicemark" shall be defined as word, phrase, symbol or design, or a
combination or words, phrases, symbols or designs that identifies and distinguishes the source of
a service from one party from those of others.
4. "Decor" shall be defined as the style of interior finishings, which may include
but is not limited to, style of furniture, wallcoverings or permanent fixtures.
5. "Color scheme" shall be defined as selection of colors used throughout, such as
on the furnishings, permanent fixtures, and wallcoverings, or as used on the fa<;:ade.
6. "Fa<;:ade" shall be defined as the face or front of a building, including awnings,
looking onto a street or an open space.
7. "Uniform apparel" shall be defined as standardized items of clothing including
but not limited to standardized aprons, pants, shirts, smocks or dresses, hat, and pins (other than
name tags) as well as standardized colors of clothing.
8. For definition of "signage," see definition of "sign," Section 17.08.060.
9. "Standardized" does not mean identical, but means "substantially the same."
C. Exemptions. The following businesses are not subject to the provisions of this
chapter:
1. Auto sales.
2. Auto tire sales and service.
3. Banks.
4. Gas (fueling) stations and convenience stores selling gasoline or other fuels.
5. Grocery stores.
6. Health care.
7. Services, including professional services (for example, real estate offices,
insurance offices, copy centers, and mail centers).
8. Adult entertainment facilities.
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Section 9. Moratorium Repealed. The moratorium established by Ordinance 2901 IS
repealed.
Section 10. Severability. In the event anyone or more of the provlSlons of this
Ordinance shall for any reason be held to be invalid, such invalidity shall not affect or invalidate
any other provision of this Ordinance, but this Ordinance shall be construed and enforced as if
such invalid provision had not been contained therein; PROVIDED, that any provision which
shall for any reason be held by reason of its extent to be invalid shall be deemed to be in effect to
the extent permitted by law.
Section 11. Effective Date. This Ordinance shall take effect and be in force 5 days
following its publication in the manner provided by law. Publication ofthis ordinance shall be by
summary thereof consisting of the title.
Adopted by the City Council of the City of Port Townsend, Washington, at a regular
meeting thereof, held this 17th day of July, 2006. I. ~
-vv\ ,~
Mark Welch, Mayor '"
\ .
Attest:
Approved as to form:
Pamela Kolacy, CMC
City Clerk
c::J? ~ r:v ->
John Watts, City Attorney
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Ordinance 2916